Murder at the Diggings: Part Five - Conviction and Sentence Questioned
Concerns were raised about Ah Lee's conviction and sentence leading to further investigation as the execution date looms.
Part Five of a multi-part series about the murder of Mary Young and what ensued afterwards.
If you haven’t read the earlier posts in this series, you can catch up here:
Awaiting Execution
All of the information below, including direct quotes, is drawn from Justice Department papers which can be linked to in the notes at the end of this article1.
After his conviction, Ah Lee remained at Dunedin gaol pending his execution. During this time, concerns were raised about Ah Lee’s conviction and/or the severity of his sentence. Key voices in support of Ah Lee included the law firm Macassey, MacDermott & Kettle, and Bishop Neville (Samuel Tarratt Neville2).
Macassey, MacDermott & Kettle
Macassey, MacDermott and Kettle knew Ah Lee’s case well. Mr MacDermott had represented Lee Guy who, as you may recall, had stood trial in the Supreme Court, Dunedin, alongside Ah Lee. Lee Guy was found not guilty and discharged.
On the basis of existing evidence and the Supreme Court trial proceedings, the law firm thought Ah Lee’s death sentence should be commuted to one of prolonged imprisonment.
On 25 October 1880, the firm sent a letter to the Minister of Justice. It was received by him on 29 October 1880. Their reasons for writing can be summarised as follows:
Medical Evidence
The key evidence relied upon against Ah Lee was the blood on his trousers and medical evidence that it wasn’t sheep’s blood. This evidence was unsatisfactory and unreliable. Dr Whitton had admitted in Court that he didn’t have a microscope of the power necessary to distinguish between human and sheep blood …
“It is highly probable that the opinion of the medical witness was more the result of a foregone conclusion or of fancy, than the certain result of accurate deductions from proved facts” .
Early Confession
The confession obtained from Ah Lee was given under the promise of a pardon. It enabled the Crown to prosecute with effect. Without it, it wouldn’t have been possible to give cohesion to a number of small facts that were relied upon to convict Ah Lee. The firm considered that, having made the confession, Ah Lee’s life should be spared, at the very least:
“We need not observe upon the expedients adopted to obtain that confession. In the opinion of Mr Justice Williams they were such as to render the confession inadmissable in evidence but it must be manifest that the complete publicity it had previously obtained was calculated to bias the minds of even the most conscientious jury”
Damage to Justice
The execution of Ah Lee could deter future prisoners implicated in a crime from making confessions that might bring their guilty associates to Justice “and thus the ends of Justice may be completely defeated”.
Bishop Neville
Bishop Neville visited Ah Lee in Dunedin gaol on several occasions and thought there was a case for reviewing the evidence and re-examining whether Ah Lee was guilty or not. What Ah Lee was telling him didn’t line up with what had been heard in Court.
Between 28 October and 1 November 1880, he sent three telegraphed messages to the Minister of Justice, William Rolleston3 as follows:
New Information (28 October 1880)
In this message, he said he had new information regarding Ah Lee. He asked that Ah Lee’s execution be deferred pending enquiry and that an official be appointed to investigate and report.
Lack of Interpretation of Evidence at Trial (29 October 1880)
In this message, he pointed to a statement made previously in relation to this issue …
“Re Ah Lee. It is suggested on the authority of the attorney general the Bertrand 36 L.J.P.C cases pages 51 & other cases that the evidence on the trial should have been interpreted to the prisoner and no consent could waive irregularity because prisoner could have suggested matters to counsel or made their own statement to jury had he known the evidence as it was given”
Unsatisfactory Medical Evidence at Trial (1 November 1880)
In this message, he shared the contents of a signed memorandum he had received. It was dated 30 October 1880 and was from Dr Maunsell, Dr Batchelor, Dr Hocken, Dr Alexander, Dr Blair, Professor Parker, and Professor Scott of Otago University.
He quoted the memorandum as follows:
“We the undersigned registered medical practitioners & professors of the Otago University having read the evidence of Doctor Whitton on the trial of Ah Lee for murder, are clearly of opinion that such evidence was altogether unreliable for the purpose of establishing the presence of human blood on the trousers and clothes of the prisoner”
Response to Concerns Raised
The Minister of Justice was quick to respond upon receiving Bishop Neville’s first telegraphed message. He sent off two messages by telegraph on the same day (28 October 1880):
A reply to Bishop Neville telling him to communicate the disclosures he had about Ah Lee to the Crown Solicitor (Brian Cecil Haggitt4), urgently.
Instruction to the Crown Solicitor telling him, upon receiving the information from Bishop Neville, to make any enquiries necessary and report whether the execution should be deferred. He also asked him to speak to the Sheriff (Colin McKenzie Gordon5), and ask him not to fix a date for the execution until further advised.
The next day (29 October 1880), the Crown Solicitor telegraphed a message to the Minister of Justice telling him what the Bishop had said. He asked whether he should follow up with enquiries and interview Ah Lee.
He also said that, despite his reservations about the need for further enquiry, he had asked the Sheriff not to open his letters from the Department of Justice, pending further instructions:
“If he opens them there will be a difficulty. See section eight supreme court act 1860 as amended by no 79 of 1865”
It appears that once the Sheriff opened his letters (with instructions about Ah Lee’s execution), he would be statutorily obliged to act and set the date of execution within a specific period of time.
It seems the Sheriff was uncomfortable with the Crown Solicitor’s request. He sought specific instruction from the Under Secretary of Justice. In response, on 30 October 1880 the Minister of Justice instructed the Sheriff to open his letters regarding the execution of Ah Lee …
“… I have to request that you will allow the longest legal interval before execution of the sentence because certain inquiries, which the Government considered necessary, are being made into circumstances of the case …”.
The Sheriff responded by telegraph the same day (30 October 1880) to say he had set the time of execution for 8am on 5 November 1880.
The Crown Solicitor initiated his enquiries on 30 October 1880, immediately after receiving confirmation from the Minister of Justice that he should proceed. Working through Superintendent Weldon in Dunedin, he engaged Inspector Hickson of Clyde to make enquiries locally in the Naseby area to see if the new information provided by Ah Lee could be substantiated. He also interviewed Ah Lee in an effort to line up his version of events with what various witnesses were saying.
On 2 November 1880, the Minister of Justice messaged Bishop Neville asking him to supply copies of his telegraphs about medical evidence and interpretation at the trial, to the Crown Solicitor. This the Bishop did the same day.
Later that day, the Crown Solicitor concluded his enquiries and gave all relevant papers to Justice Williams, as he had been instructed to do by the Minister of Justice.
Also on 2 November 1880, Justice Williams, having received all relevant papers, sent a telegraphed message to the Colonial Secretary, Thomas Dick6, expressing his opinion on the matters raised in relation to medical evidence and interpretation at trial.
On the matter of new evidence, he declined to comment …
“As to the other papers submitted to me by Mr Haggitt they relate to fresh evidence alleged to exist which was not before me at the trial but which the prisoner suggests should alter the result to ascertain. Whether it is reasonably probable such evidence exists & to examine the credibility and value of this evidence are duties which I hardly think appertain to my office the papers speak for themselves I have had them posted to you”.
The Decision Makers
Ah Lee’s future lay in the hands of the Executive Council and the Governor of New Zealand. In 1880, the Executive Council was (and still is) the highest formal instrument of Government in New Zealand. The Council comprises all Government Ministers. It is presided over by the monarch’s representative who is not part of the Council but acts on its advice.
In 1880, the monarch was Queen Victoria and her representative was Governor, Sir Arthur Hamilton Gordon7. Some of the Council members, you have already ‘met’ in this and earlier parts of this series - John Hall8, Premier (Prime Minister), William Rolleston, Minister of Justice, Thomas Dick, the Colonial Secretary, and Harry Albert Atkinson9, Colonial Treasurer.
A Timeline Issue
Ah Lee’s case was due to be considered by the Executive Council at 3pm on 3 November 1880. While all the relevant papers had been posted in Dunedin by Justice Williams on 2 November 1880, they were unlikely to arrive in Wellington in time for the Executive Council’s meeting. Nor were the papers likely to arrive before the scheduled execution at 8am on 5 November 1880.
On the morning of 3 November 1880, the Minister of Justice sought urgent comment from the Crown Solicitor about what the new matters raised by Ah Lees statement were:
“Will you state for the information of His Excellency what new matter if any you have laid before Mr Justice Williams and give substance of such matter by Telegraph ... Executive Council meets at three pm. Please reply. Urgent”
At the same time, the Colonial Secretary sent an urgent message by telegraph to Justice Williams telling him his papers wouldn’t arrive in time and instructing him to message all information relevant to Ah Lee’s case by telegraph.
This prompted a very long message from Justice Williams to the Colonial Secretary detailing what was in the papers he had posted.
The message was sent at 11:44am on 3 November 1880 in time for the Executive Council's meeting in the afternoon of the same day. The Crown Solicitor also responded to the Minister of Justice with his opinion of the new evidence.
A further message was sent by Justice Williams to the Colonial Secretary at 2:41pm on 3 November 1880 commenting on a particular aspect of the new evidence. This seems to be in direct response to a question asked of him; presumably something that arose during a perusal of the papers by the Colonial Secretary prior to the Executive Council’s meeting.
Decision Time
The Executive Council met, as planned, on the afternoon of 3 November 1880 to consider information and opinions received.
While I really didn’t want to keep you waiting for the outcome any longer, I feel I must. This post is already too long and I think it is important for you to know what information the Council had in front of it when it made its decision.
It is a sad fact that this meeting of the Executive Council, two days before Ah Lee’s scheduled execution, is the first real opportunity that Ah Lee had to have his side of the story officially heard. No witnesses were called by the Defence at his Supreme Court trial and it is debateable how much of what was going on in Court he fully understood.
Did the Executive Council listen? Did the opinions of the Crown Solicitor and Justice Williams help or hinder? More about that in part six …
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The information in this post is drawn from my one-place study website on the weare.xyz platform
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Notes:
Archives NZ / CC BY 2.0 - Item Code: R24386581 - Box number: 279 - Record number: 1880/4972. [Papers transferred from the Department of Justice, New Zealand to Archives New Zealand in 1983]. Physical access - Wellington Repository Archives New Zealand - Digital Access - IE86581720. See also, the Documents Section of my Kyeburn Diggings One-Place Study Archive.
Ken Booth. 'Nevill, Samuel Tarratt', Dictionary of New Zealand Biography, first published in 1993. Te Ara - The Encyclopedia of New Zealand - (accessed 16 March 2025).
W. J. Gardner. 'Rolleston, William', Dictionary of New Zealand Biography, first published in 1990. Te Ara - The Encyclopedia of New Zealand (accessed 15 March 2025)
Scholefield G.H (Ed.) (1940) A Dictionary of New Zealand Biography Volume 1 (A-L) - Department of Internal Affairs New Zealand - Haggitt, Brian Cecil (1838-98) - PDF via NZ History / CC BY-NC 3.0 . See also the entry on the NZ Ancestor Search Helper
See his WikiTree Profile here
Scholefield G.H (Ed.) (1940) A Dictionary of New Zealand Biography Volume 1 (A-L) - Department of Internal Affairs New Zealand - Dick, Thomas (1823-1900) - PDF via NZ History / CC BY-NC 3.0 . See also the entry on the NZ Ancestor Search Helper
W. P. N. Tyler. 'Gordon, Arthur Hamilton', Dictionary of New Zealand Biography, first published in 1993. Te Ara - the Encyclopedia of New Zealand (accessed 23 March 2025)
W. J. Gardner. 'Hall, John', Dictionary of New Zealand Biography, first published in 1990. Te Ara - The Encyclopedia of New Zealand (accessed 15 March 2025)
Judith Bassett 'Atkinson, Harry Albert', Dictionary of New Zealand Biography, first published in 1990. Te Ara - The Encyclopedia of New Zealand (accessed 15 March 2025)
This series has been gripping to read. Also - great research!
Definitely on tenterhooks for the next instalment